DRC Overdue Payables
Texto da decisão
REF FPSD-7265
Decision of the
Dispute Resolution Chamber
passed on 28 October 2022
regarding an employment-related dispute concerning the player Luis Carlos
Eneas da Conceição Lima
BY:
Daan DE JONG, the Netherlands
CLAIMANT:
Luis Carlos Eneas da Conceição Lima, Brazil
Represented by Nuno Rego
RESPONDENT:
Karmiotissa Polemidion, Cyprus
Represented by 14 Sports Law
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I. Facts of the case
1.
On 21 July 2021, the Brazilian player, Mr Luis Carlos Eneas da Conceição Lima (hereinafter:
the player or the Claimant), and the Cypriot club, Karmiotissa Polemidion (hereinafter: the
club or the Respondent), concluded an employment contract valid as from the date of
signature until 31 May 2022 (hereinafter: the employment contract).
2.
In accordance with clause 1.3 of the employment contract, the club undertook to pay the
player a monthly salary of EUR 500 net.
3.
Also on 21 July 2021, the same parties executed a supplementary agreement to the
employment contract, valid for the same period (hereinafter: the supplementary
agreement).
4.
Clauses 1 and 2 of the supplementary agreement reads as follows, in verbis:
“1. In consideration of the services to be rendered by the player according to the agreement
dated 21/07/2021 and in addition to the salary payable to the player under the said
agreement [the club] shall pay the player the additional sum of € 25,000 (twenty five
thousand euro) (10 months x € 2,500) making a total of € 25,000 (twenty five thousand
euro) for the whole of the employment period, the first payment payable according to the
present agreement on the 31st of August 2021 for the additional amount of €2,500 and
thereafter the additional amount of € 2,500 on the 30st of each following working month
until the end of the employment period 2021-2022 and until full payment of the above
additional salary. It is agreed by both parties that the total amount payable by the present
contract dated 21/07/2021 will be no more than € 30,000 (thirty thousand euro) total for
both agreements. The player accepts to give to [the club] grace period of thirty days to pay
his working additional month.
2. [The club] will pay as bonus the amount of 5,000 euros to the player if the club at the
end of the season 2021-2022 wins the participation in First Division of CFA”.
(emphasis in the original)
5.
On 18 December 2021, the player and the club decided to prematurely terminate their
employment relationship by mutual consent. In doing so, they concluded a termination
agreement (hereinafter: the termination agreement) and a supplementary termination
agreement (hereinafter: the supplementary termination agreement).
6.
The termination agreement reads inter alia as follows:
“1. The employment contract is hereby terminated with immediate effect.
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2. The player is free to negotiate, agree and sign with any football club in Cyprus or
internationally.
3. The club agrees that it will have no financial claim or benefit against any club that will
offer a professional employment contract to the player.
4. The club represents and warrants that it does not have any financial claim or other claim
against the player.
5. The player represents and warrants that it has no financial or other claim against the
club”.
7.
The supplementary termination agreement reads inter alia as follows:
“1. [The club] will pay as the amount of 3,000 euros to the player for December 2021 salary.
2. [The club] will pay as the amount of 1,500 euros to the player for January 2022 salary.
3. [The club] will pay as the amount of 600 euros to the player for medical exams.
4. [The club] will pay to the player 3 one-way air ticket for him (Larnaca – Brazil) (not
Business Class).
5. The above total amount of 5,100 euros will be paid as follow:
a. 2,500 euros at 15th January 2022
b. 2,600 euros at 30th January 2022”.
(emphasis in the original)
8.
On an unspecified date following the termination of the employment relationship of the
parties, the player flew from Lanarca (Cyprus) to Salvador (Brazil). The air tickets costed
EUR 2,630 and were paid by the player.
9.
On 14 May 2022, the club’s first team played against Alki Oroklini and won the match. In
doing so, it won the second division of the 2021/2022 national championship.
10. On 15 July 2022, the player put the club in default and requested payment of EUR 9,730
net, corresponding to a bonus per the supplementary agreement, reimbursement of air
tickets, and an outstanding instalment per the supplementary termination agreement.
II. Proceedings before FIFA
11. On 30 August 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
12. According to the player, the club failed to pay him part of his remuneration. In particular,
he requested to be awarded EUR 9,730 net, broken down as follows:
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a. EUR 5,000 as the bonus established in clause 2 of the supplementary agreement
because the club’s team won the participation in the Second Division of the Cypriot
national championship at the end of the 2021/2022 season;
b. EUR 2,630 as three one-way air tickets per clause 4 of the supplementary
termination agreement; and
c. EUR 2,100 as the balance of the remuneration per clause 5 of the supplementary
termination agreement.
13. Furthermore, he also argued that interest of 5% p.a. should apply as from the due dates
of each concept until the date of effective payment.
b. Position of the club
14. On 30 September 2022, the club filed its reply to the player’s claim.
15. In its reply, the club acknowledged having failed to pay the player the amount of EUR
2,100 corresponding to the last instalment of the supplementary termination agreement.
16. Nevertheless, the club opposed the player’s argumentation as to the collective bonus and
the reimbursement of the flight tickets, as follows:
•
Regarding the collective bonus, the club pointed out that by signing the termination
agreement and the supplementary termination agreement the parties established
all the remaining financial obligations towards each other. As such, taking into
consideration that no mention to the bonus was added to such contracts, the
player’s request based on the supplementary agreement shall be considered
“rejected as ill-founded and ungrounded”; and
•
Regarding the flight tickets, the club argued that “the amount corresponding to the
air tickets of the player had been reimbursed by the club”.
17. In light of the above, the club concluded that the player’s claim should be rejected apart
from the amount of EUR 2,100.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, it took note that the present matter was presented to FIFA on 30 August 2022
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and submitted for decision on 28 October 2022. Taking into account the wording of art.
34 of the June 2022 edition of the Procedural Rules Governing the Football Tribunal
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
19. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22, par. 1, lit. b)
of the Regulations on the Status and Transfer of Players (July 2022 edition), the Dispute
Resolution Chamber (DRC) is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between a Brazilian
player and a Cypriot club.
20. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (July 2022 edition), and
considering that the present claim was lodged on 30 August 2022, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
21. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
22. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments, and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
23. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim for overdue payables lodged by the
player against the club being: (i) EUR 5,000 as collective bonus per the supplementary
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agreement; (ii) EUR 2,100 as outstanding amount per the supplementary termination
agreement; and (iii) EUR 2,300 as reimbursement of expenses with air tickets.
24. In this context, the Single Judge firstly turned to the player’s claim for a collective bonus
based on the supplementary agreement. In doing so, he outlined that at the time the
club’s team achieved the title of the second division of the Cypriot national championship,
the employment relationship between the player and the club had already been
terminated. As such, the Single Judge deemed that in case the parties intended to
stipulate any extra payment (such as the collective bonus) they should have done so in
writing. Nevertheless, the parties’ signed two agreements pertaining to the employment
relationship termination and did not foresee any contingent payment such as the one
sought by the player.
25. Consequently, the Single Judge was firm to determine that this part of the player’s claim
should be rejected.
26. In continuation, the Single Judge moved to the analysis of the supplementary termination
agreement and observed that it remained undisputed between the parties that the sum
of EUR 2,100 was outstanding and should have been paid by the club.
27. Therefore, the Single Judge decided that the cited EUR 2,100 should be awarded to the
player on the basis of the general legal principle of pacta sunt servanda. Additionally,
taking into consideration the player’s request as well as the constant practice of the DRC
in this regard, the Single Judge decided to award the player interest at the rate of 5% p.a.
on the outstanding amount as from 31 January 2022 until the date of effective payment.
28. Finally, the Single Judge turned his attention to the player’s request for reimbursement of
his flight tickets. In this connection, the Single Judge took due consideration that the club’s
obligation to provide the player with air tickets was already indicated in the
supplementary termination agreement. Furthermore, he highlighted that whereas the
player claimed to be entitled to EUR 2,300 as reimbursement of his flight tickets, the club
did not challenge the player’s entitlement to such concept, nor the quantum claimed – but
alleged that it had been already delivered without providing, yet filed no evidence in
support of this argument.
29. In followed from the above, in the Single Judge’s view, that the club bore the burden of
proof to demonstrate that it provided the player with the respective flight tickets and/or
the correspondent amount. As no evidence was advance to this extent, the Single Judge
decided that the player should be awarded the reimbursement sought.
30. Taking into consideration that the date of payment of the respective flight tickets was not
clearly stipulated in the invoice (i.e. only the date of issuance by the travel company), the
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Single Judge decided that interest of 5% p.a. should arise as from the date of the claim
until the date of effective payment.
ii. Article 12bis of the Regulations
31. Having established the above, the Single Judge referred to art.12bis par. 2 of the
Regulations, which stipulates that any club found to have delayed a due payment for more
than 30 days without a prima facie contractual basis may be sanctioned in accordance
with art. 12bis par. 4 of the Regulations.
32. To this end, the Single Judge confirmed that the player put the club in default of payment
of the amounts sought, which had fallen due for more than 30 days, and granted the club
with 10 days to cure such breach of contract.
33. Accordingly, the Single Judge also confirmed that the club had delayed a due payment
without a prima facie contractual basis. It followed that the criteria enshrined in art. 12bis
of the Regulations were met in the case at hand.
34. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
she has competence to impose sanctions on the club. On account of the above and
bearing in mind that this is the first offense by the club within the last two years, the Single
Judge decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a)
of the Regulations.
35. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
36. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
37. In this regard, the Single Judge highlighted that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from registering any
new players, either nationally or internationally, up until the due amounts are paid. The
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
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38. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of
notification of the decision, failing which, at the request of the player, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become immediately
effective on the club in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
39. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
40. The Single Judge recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amounts, in accordance with art.
24 par. 8 of the Regulations.
d. Costs
41. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs
were to be imposed on the parties.
42. Likewise and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
43. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Luis Carlos Eneas da Conceição Lima, is partially accepted.
2.
The Respondent, Karmiotissa Polemidion, has to pay to the Claimant the following
amount(s):
- EUR 2,100 as outstanding remuneration plus 5% interest p.a. as from 31 January 2022
until the date of effective payment; and
- EUR 2,300 as outstanding remuneration plus 5% interest p.a. as from 30 August 2022
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent.
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban
shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules).
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